Unwelcome news for dairy producers, the decision will have a significant impact on immigration, particularly for employers who either knowingly or unknowingly employ undocumented workers. And Arizona’s law is certain to spawn copy-cast legislation in other states.

On May 26, 2011, the U.S. Supreme Court decided the constitutionality of the Legal Arizona Workers Act in Chamber of Commerce v. Whiting.

This is the “other” Arizona law designed to deal with illegal immigration, which is less controversial and has received far less media attention than the provision that has become commonly known as “Arizona SB 1070.”

Whiting is unlikely to have much of an impact on how the Court will ultimately rule on SB 1070, which has generated international controversy. Nonetheless, Whiting will have a significant impact on immigration, particularly as it relates to employers who either knowingly or unknowingly employ undocumented workers.

Under federal law, it is illegal for states to regulate immigration by imposing civil or criminal penalties for the employment of unauthorized workers. However, Congress made an exception and expressly permitted the states to impose sanctions through “licensing and similar laws.” In Whiting, the Court found that the Legal Arizona Workers Act falls squarely into the licensing exception.

Immediately, Whiting will only impact employers in Arizona and the eight other states that have similar laws on the books: Colorado, Mississippi, Missouri, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia. In the future, Whiting is certain to spawn copycat legislation in other states.

Understanding the Legal Arizona Workers Act

In order for dairy producers to understand the immediate or future impact on their business, it is critical to understand the fundamentals of the Legal Arizona Workers Act.

Under the Arizona law, an individual can file a complaint alleging that an employer has hired an unauthorized worker, and the attorney general or county attorney must then verify the employee’s work authorization through the federal government. The law specifically prohibits state, county and local officials from attempting “to independently make a final determination” on work authorization. If the inquiry reveals that the worker is unauthorized, the attorney general or county attorney must notify Immigration and Customs Enforcement and local law enforcement.

The state also must bring an action against the employer. Good-faith compliance with the I-9 process provides the employer with an affirmative defense. If the state determines that there has been a knowing or intentional violation, the employer is ordered to fire all unauthorized workers and all licenses can be temporarily suspended. A second violation results in permanent revocation of all licenses.

Finally, the law requires all Arizona employers to utilize E-Verify for their workers. E-Verify is the federal electronic system to verify employment authorization that was created in 1996. When it was created, Congress specifically mandated that the program was voluntary. In Whiting, the Court rejected the argument that, by requiring that all employers utilize E-Verify, Arizona was undermining Congress’ intent that the program be voluntary.

Unwelcome News for Dairy Producers

For dairy producers already struggling to maintain a reliable workforce, the Whiting decision is unwelcome news. It will have an immediate impact in the states that already have laws regulating unauthorized workers through licensing. Similar laws will likely be enacted in others states and the mandated use of E-Verify will spread.

Producers in the nine affected states should familiarize themselves with the specific provisions of their state law and how it might impact their business. Producers elsewhere should be vocal with state legislators about the negative impact that the passage of such a law will have on business. In the end, all producers should continue to pressure their federal representatives to resolve the problem in the right manner and place: in Washington, D.C., with federal immigration reform.

Erich C. Straub is an immigration lawyer who practices in Wisconsin and is listed in The Best Lawyers in America, SuperLawyers, and U.S. News and World Report’s Best Law Firms. Mr. Straub has spoken to audiences throughout the U.S. on immigration, and frequently advises Wisconsin Dairy Farmers on the topic. He has traveled Washington DC to meet with elected officials regarding immigration reform, and in 2008, the Milwaukee Business Journal described him as a “national leader on the federal immigration issue.” Contact him at erich@straubimmigration.com.

Simple daily actions will boost the morale and “feeling good at work” sentiments of your workers, Hispanic or not, leading to increased worker retention and comfort in the workplace.

By Mario E. de Haro Martí, Extension Educator, University of Idaho

The dairy industry has made enormous advances on its productivity and overall efficiency achieving production goals that would have been incredible 40 years ago. Despite all these great achievements, retaining a proficient and reliable work force, and keeping dairy workers happy in their jobs remain a tough challenge for the industry.

Since many of the dairy workers in the dairy industry are of Hispanic background (up to 75% or more in some areas), and many of them (if not most) are first-generation migrants, a natural cultural shock happens both for workers and dairy owners and managers. Many articles have been written about how to minimize this shock and work on an adequate transition while maintaining productivity, reducing conflicts, and increasing worker retention and satisfaction.

Let’s now talk about some specific gestures and actions that dairy owners and managers can apply without spending a lot of money. These actions applied on a daily basis will boost the morale and “feeling good at work” sentiments of your workers (Hispanic or not), leading in the long run to increased worker retention and comfort on the workplace.

1)Treat everybody in the same way: with respect and consideration. Do not yell at your employees. Give orders and ask for tasks in a respectful way. Be impartial when conflicts arise between employees, looking for the facts and logical ways to resolve them. Respect, and not fear, is what you need to look from your employees.

2)Listen to your employees. Workers are the day-to-day operatives of your company. They perform daily tasks and, besides knowing how to do them, they often bring good ideas to improve daily operations and to save time, effort or money. Many people have experienced the frustration of not being heard when a problem has been observed or when believing a task could be done differently. Be receptive to workers ideas, if you believe they will work try them, and if adopted, recognize the employee who brought them up. If some of their ideas won’t work, just explain to them why they can’t be adopted and thank them for bringing them up anyway.

3)Encourage your employees to learn English. That’s easy to say but sometimes difficult to achieve. Just picture yourself working 10 hours six days a week in physically demanding work (that leaves you dirty and stinky so you will need a shower before entering any classroom) and then traveling 40 minutes or so (no dairy is near a college) to sit for at least an hour, two or three times a week, and learn a totally new language. How do you think you will do? Ask your local college, university or migrant council for English as a Second Language (ESL) classes and post their flyers in your facilities. Look for ways to encourage workers to attend such classes. Be willing to allow a little flexibility with shifts so they can go to class. You could even provide transportation for a group of workers, or offer your facilities (meeting room) for ESL classes.

4)Learn basic Spanish words and expressions and apply them daily. Learning the Spanish version of greetings, thanks, some respectful “no” phrases, polite questions and goodbyes can have wonderful effects on making your Hispanic workers feel that you are making an effort to be closer and to understand them better.

5)Develop Standard Operating Procedures (SOP) in both English and Spanish for all important tasks. Ask your employees to be familiar with the SOPs related to their work. Be aware that some employees may be illiterate even in Spanish, so someone will need to read and explain the SOP to them. Have all signs within the dairy written in both languages.

6)Provide facilities that make workers feel appreciated and safe. Workers should have a clean area for changing clothes, and some sort of storage for their clothes, boots and personal belongings. They should also have access to a place and supplies to clean their boots and working tools (it helps with biosecurity issues too). Provide a clean room or area for lunch/dinner, with potable water, refrigerator, microwave, tables, chairs and a sink. Designate lunch and dinner times for each employee or group of employees. Provide clean and well maintained bathrooms, if possible with showers. If you have workers of both genders, provide separate bathroom and changing facilities for each gender. Ask your employees to help maintain clean facilities by applying sound housekeeping principles (and enforce them). But have someone in charge of the routine cleaning of bathrooms, changing areas, kitchen or lunch room, and offices (like a housekeeping company or an hourly employee).

7)Host regular meetings with your employees. Do two types of meetings: operational meetings and social meetings, and keep them separated and well defined. Operational meetings should include meetings with managers and employees by sectors or areas of work (milkers, feeders, etc.). During these meetings, discuss items proper to their activities, goals, new tasks, safety and trainings. Operational meetings should be mandatory and scheduled on a regular basis. Social meetings are very important too. Dairy owners usually recognize Hispanics as a hardworking community, but they also like to socialize and enjoy community life. Social meetings at the dairy are a good way to socialize with them and to recognize them for a job well done. Monthly, quarterly, semi-annually -- you decide. But social meetings where you, your managers, workers and sometimes families meet for a meal and a “worker’s appreciation day” are highly valued by workers.

8)Be aware of your workers’ life benchmarks. Hispanic workers usually are reserved about their private life, but asking them how everything is at home won’t be seen as being nosy. On the contrary, it will show that you care. To reinforce that, a great way to increase workers’ appreciation for your company and your family is to show interest in their family life benchmarks. Small presents for a newborn, kid’s graduation, or simply a word of support in case of a family illness or loss are very much appreciated and add to an overall feeling of belonging to a workplace.

Making your dairy a better place to work at doesn’t necessarily take a lot of money. Small investments in your workers’ well being, reinforcing good attitudes, and being open and accessible can dramatically improve your workers’ satisfaction and retention.

On Wednesday, May 11, President Obama gave a significant policy speech addressing comprehensive immigration reform. Almost immediately, the political spin on the speech was that the President was attempting to curry favor with Hispanic voters--a constituency he needs to win by significant margins to be re-elected.

While the President stressed that the broader economy stood to benefit from immigration reform, the Reuters article summarizing the speech noted that “he offered no concrete policy initiatives or timelines for introducing broad legislation, underscoring the fact that he is unlikely to advance any major overhaul before the 2012 presidential election.”

Assuming that is the case, it means that legislation that is considered by Congress will likely be limited to bills addressing the use of the E-Verify system or less comprehensive measures, such as the DREAM Act, which failed to pass in the last Congress.

ImmigrationWorks, USA, a national organization of state business coalitions advancing comprehensive immigration reform hosted a national conference call earlier this month to discuss the political climate on immigration reform in Congress, and to discuss some of the changes to the E-Verify system that might be proposed in this Congress.

The prediction of the presenter on the ImmigrationWorks call was that Congress will act upon legislation to make E-Verify use mandatory this year. The continuing obstacles to a comprehensive immigration reform bill are the perception that border security and employer responsibility for hiring need to be improved before other immigration issues are considered. Mandatory use of E-Verify would address the second of those two obstacles. Currently, use of the E-Verify system is mandatory only for certain federal contractors, and in states such as Arizona, where state laws require its use. Use by other employers is optional.

While Republican leadership in the House does not have comprehensive reform on its agenda, Lamar Smith, Chair of House Judiciary Committee, likes the idea of increased and eventual mandatory E-Verify use. Meanwhile, on the Senate side, Democratic leadership is more open to a comprehensive reform package, with E-Verify as a component of comprehensive legislation.

While early versions of the E-Verify database were error prone, with eligible workers being reported as ineligible at unacceptable rates, technological and database improvements have improved the system, according to statements from the U.S. Customs and Immigration Service (CIS). According to US-CIS, 98.3% of E-Verify cases run in the last fiscal year were immediately verified, which is up from 70% five or so years ago.

Improvements aside, the details of any E-Verify bill will be critically important. If made mandatory, employers will want safe harbor protection for employing persons verified by the system, and protection from liability from errors with the E-Verify database, as well as clear and defined guidance on how to resolve conflict between employees not verified by the system but who maintain that they are eligible to be employed.

If the predictions of forthcoming E-Verify legislation are correct, look for initial action to begin in the House of Representatives. Then sit back and wait for the real politicking to begin as the calls for Senate passage come. Many Senators will try to move more comprehensive reforms, while the backers of E-Verify will only attempt to tack the E-Verify measures onto other “must pass” bills.

Ryan Miltner is an agricultural and estate planning lawyer in private practice. His agricultural practice is focused on dairy policy and the economic regulation of the dairy industry. The opinions in this article are his own observations prepared for Dairy Today and do not necessarily reflect the opinions of any of his clients. Contact him at ryan@miltnerlawfirm.com.

When good employees have to leave your dairy.

By Greg Coffta, Cornell University’s Northwest New York Dairy, Livestock and Field Crops team

There are many reasons why employees and employers part ways, and in most cases it is a situation that is difficult to communicate. When an employee is fired, the meeting can be rather uncomfortable for both parties, and could stifle communication. Nonetheless, these interactions are relatively straightforward in purpose.

Perhaps a more difficult situation is when an excellent employee leaves under good terms, such as deciding to return home.

Any manager enjoys working with a team of competent, experienced employees. The dairy manager is no different. In most cases, the most experienced and competent Spanish-speaking employees are those who have been working on the farm for the longest time, often more than six or seven years. At this point in the average career of the Spanish-speaking employee, there is a strong desire to return home. Some simply leave for a few months, others go home to return for good. In either case, the dairy manager is going to have to confront the inevitable loss of a good employee and friend.

To be prepared, there are a few simple actions that the dairy manager can take. First, have a staff meeting with your Spanish-speaking employees to discuss “going home.” Let them know that you understand their situation and that there will be no hard feelings or consequences for planning to leave.

Make sure they feel comfortable coming to you with the news as soon as possible, even if they are early in the planning stages. These veteran employees usually value the relationship they have with their employer and seek to preserve a positive interpersonal reality. This makes it difficult to bring up in conversation, and easy to put off for another day. Along the same lines, don’t underestimate how much the employee values your relationship and hopes that you value it, too.

After you have determined the employees who are planning to go and when, you can make the second move. Identify a current employee (who’s planning to stay awhile) who is interested in taking over the position of the person who is leaving. Make time for that employee to cross-train and work side-by-side with the person who is leaving. Provide opportunities for on-the-job training and preparation so that when employee A leaves, employee B is reading to hit the ground running.

So, that solves the problem of filling the higher skilled position, but what about the milker/pusher position that employee B left? Unavoidably, you will have to make a new hire at some point. Chances are your group of Spanish-speaking employees has already discussed the opening. Have a meeting with them and ask who (if anyone) would like to move into that position. Day positions are more coveted than the night shift, and it’s likely that someone is eager to work on the day shift.

Next, ask if they know of someone looking for work: a brother, cousin, etc. Tell them that you don’t want just anybody to fill the position. Remind them that they will have to be working with that person and it’s best to choose someone who is responsible and team-oriented. Working with your existing employees to make a new hire is an effective way to earn employee respect and confidence, build a strong team of employees and build a sense of team.

If your employees don’t offer a good option for a new hire, you may have to look to outside sources. Talk to other area farmers. They may know of someone, and their Spanish-speaking employees surely do. Ensure that the potential hire is a responsible employee (that he or she didn’t get fired from the previous job for something grossly indecent), and try to include some of your trusted employees in the interview process.

Especially if you are operating with a lean team of essential employees, you can’t afford to lose any of them without an adequate replacement. Preparation will help you work through staffing changes with less wasted time and less frustration.

In his role as Bilingual Dairy Support Specialist for Cornell University’s Northwest New York Dairy, Livestock and Field Crops team, Coffta provides training, translations and meeting facilitation as well as management consulting in English to New York dairy farms. He obtained his bachelor’s degree from SUNY College in Brockport with a double major in Spanish and communications. He earned a master’s degree in education from the University at Buffalo. Contact Coffta at gjc53@cornell.edu.

Visiting the hometowns of your dairy’s employees builds understanding and cements relationships. Here’s a look at trip itineraries, costs and other details.

By Shaun Duvall, Puentes/Bridges

You are most likely a dairy producer if you are reading this. If you have a medium to large number of cows, you probably have Latino employees to do your milking and barn chores. If that is the case, ¡Dichosos ustedes! Lucky you!

I wear many hats on my 40-plus dairies, from interpreter to mom to cultural consultant, to trainer, to friend of both the producer and his/her employees. There are many cultural hurdles and misunderstandings that I must explain in the course of a day.

When the producer has been on a Puentes/Bridges trip, these hurdles become much less significant, and the satisfactions equally more satisfying.

The Puentes/Bridges trip is designed for dairy producers but is not exclusive to them. I have taken more than 150 people from Minnesota, Wisconsin, Illinois and Iowa to Mexico. We have gone to very remote corners of Mexico, where many of the folks milking our cows come from. I can briefly describe the itinerary, the experience and the cost to you. This is a trip that is planned uniquely each year, depending on the participants. We follow a general itinerary, but there is also a lot of variation.

One itinerary is a 10-day trip with four days of intensive Spanish classes in a rural setting, living with a middle-class family, cultural and archeological study tours, and then a visit to an area where the family of one of your employees would live. The second itinerary is a seven-day version without the classes and homestay. Rather than archeological tours, we visit agricultural sites in the area of your employees’ homes. Both itineraries take place in early November.

The cost for the 10-day trip will be somewhere around $3,000, all-included, except for a couple of meals. (Departure is from the Minneapolis/St. Paul airport). The shorter trip is about $2,500, with the same departure location. The detailed itinerary will vary depending on who is traveling, where their employees are located, and if they want me to arrange a visit to their town and a meeting with families.

If you’re interested, let me know. You must commit by late August so I have time to arrange the visits and the other activities.

The benefits to you as a producer are:
• seeing the reality of rural Mexico;
• understanding why people are here to help support their families;
• meeting the families, which cements and assures an improved working relationship;
• learning that we are not that different.

Wisconsin dairy producer John Rosenow (center) meets with his dairy employees' family members in Veracruz, Mexico.

Many of those who are here working are from rural areas, as are we. Many suffer from lack of infrastructure, economic development and support in their communities, as we did or currently do. You understand the crisis they face on a daily basis to support their families and that planning for the future is often a luxury. You understand that their challenges are not that different from the ones our grandparents or great grandparents faced.

You see the strength of the Mexican family. You understand why so many sacrifice years away from their families to offer their children a chance to “seguir adelante,” to get ahead. You may come back with a bag full of beans, coffee, chiles and other treasures to take to your employees.

Mostly, you’ll come back carrying deep love and affection to bring to your employees from their wives or husbands, their children, and their parents. You’ll be told things like, “Into your hands I entrust my sons,” “Please take care of my husband, and send him home safely,” and, “When can I come and work on your farm?”

Somehow, this changes everything. My next column will discuss more about those changes. Contact me if you want more information.